An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act”.

SUMMARY

This enactment establishes a regulatory framework to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities.

It enacts the Electronic Commerce Protection Act, which prohibits the sending of commercial electronic messages without the prior consent of the recipient and provides rules governing the sending of those types of messages, including a mechanism for the withdrawal of consent. It also prohibits other practices that discourage reliance on electronic means of carrying out commercial activities, such as those relating to the alteration of data transmissions and the unauthorized installation of computer programs. In addition, that Act provides for the imposition of administrative monetary penalties by the Canadian Radio-television and Telecommunications Commission, after taking into account specified factors. It also provides for a private right of action that enables a person affected by an act or omission that constitutes a contravention under that Act to obtain an amount equal to the actual amount of the loss or damage suffered, or expenses incurred, and statutory damages for the contravention.

This enactment amends the Competition Act to prohibit false or misleading commercial representations made electronically.

It also amends the Personal Information Protection and Electronic Documents Act to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.

Finally, it makes related amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, the Canadian Radio-television and Telecommunications Commission Act and the Telecommunications Act.

AN ACT TO PROMOTE THE EFFICIENCY AND ADAPTABILITY OF THE CANADIAN ECONOMY BY REGULATING CERTAIN ACTIVITIES THAT DISCOURAGE RELIANCE ON ELECTRONIC MEANS OF CARRYING OUT COMMERCIAL ACTIVITIES, AND TO AMEND THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT, THE COMPETITION ACT, THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT AND THE TELECOMMUNICATIONS ACT

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

“Commission”« Conseil »

“Commission” means the Canadian Radio-television and Telecommunications Commission.

“Commissioner of Competition”« commissaire de la concurrence »

“Commissioner of Competition” means the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.

“computer program”« programme d’ordinateur »

“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“computer system”« ordinateur »

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“court of competent jurisdiction”« tribunal compétent »

“court of competent jurisdiction” means the Federal Court or a superior court of a province.

“data”« données »

“data” means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system.

“document”« document »

“document” has the same meaning as in section 487.011 of the Criminal Code.

“electronic address”« adresse électronique »

“electronic address” means an address used in connection with the transmission of an electron- ic message to

(a) an electronic mail account;

(b) an instant messaging account;

(c) a telephone account; or

(d) any similar account.

“electronic message”« message électronique »

“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message.

“Privacy Commissioner” means the Privacy Commissioner appointed under section 53 of the Privacy Act.

“telecommunications facility”« installation de télécommunication »

“telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.

“telecommunications service”« service de télécommunication »

“telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the telecommunications service provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.

“telecommunications service provider”« télécommunicateur »

“telecommunications service provider” means a person who, independently or as part of a group or association, provides telecommunications services.

“transmission data”« données de transmission »

“transmission data” means data that

(a) relates to the telecommunications functions of dialling, routing, addressing or signalling;

(b) either is transmitted to identify, activate or configure an apparatus or device, including a computer program, in order to establish or maintain a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and

(c) does not reveal the substance, meaning or purpose of the communication.

(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

(4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada is not considered to be a commercial electronic message.

(5) For the purposes of this Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address.

3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct

(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;

(b) imposes additional costs on businesses and consumers;

(c) compromises privacy and the security of confidential information; and

(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

4. This Act is binding on any corporation that is expressly declared by or under any Act of Parliament or of the legislature of a province to be an agent of Her Majesty, when the corporation is acting as such in the course of any commercial activity.

(3) The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent shall ensure that the contact information referred to in paragraph (2)(b) is valid for a minimum of 60 days after the message has been sent.

(5.1) Paragraph (1)(a) does not apply to a commercial electronic message that solely

(a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;

(b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;

(c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;

(d) provides notification of factual information about

(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or

(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;

(e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled;

(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or

7. (1) No person shall, in the course of a commercial activity, alter or cause to be altered the transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender, unless the alteration is made with the express consent of the sender or the person to whom the message is sent, or is made in accordance with a court order.

8. (1) No person shall, in the course of a commercial activity, install or cause to be installed a computer program on any other person’s computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless the person has obtained the express consent of the owner or an authorized user of the computer system or is acting in accordance with a court order.

(2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions.

(2) A person who seeks express consent for the doing of any act described in section 8 must, when requesting consent, also, in addition to setting out any other prescribed information, clearly and simply describe, in general terms, the function and purpose of the computer program that is to be installed if the consent is given.

(2.1) In addition to the requirements set out in subsections (1) and (2), if the computer program that is to be installed performs one or more of the functions described in subsection (2.2), the person who seeks express consent must, when requesting consent, clearly and prominently, and separately and apart from the licence agreement,

(a) describe the program’s material elements that perform the function or functions, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation of the computer system; and

(b) bring those elements to the attention of the person from whom consent is being sought in the prescribed manner.

(2.2) A function referred to in subsection (2.1) is any of the following functions that the person who seeks express consent knows and intends will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or an authorized user of the computer system:

(a) collecting personal information stored on the computer system;

(b) interfering with the owner’s or an authorized user’s control of the computer system;

(c) changing or interfering with settings, preferences or commands already installed or stored on the computer system without the knowledge of the owner or an authorized user of the computer system;

(d) changing or interfering with data that is stored on the computer system in a manner that obstructs, interrupts or interferes with lawful access to or use of that data by the owner or an authorized user of the computer system;

(e) causing the computer system to communicate with another computer system, or other device, without the authorization of the owner or an authorized user of the computer system;

(f) installing a computer program that may be activated by a third party without the knowledge of the owner or an authorized user of the computer system; and

(2.3) Subsection (2.1) does not apply in respect of a computer program that performs a function described in subsection (2.2) if that function only collects, uses or communicates transmission data or performs an operation specified in the regulations.

(2.4) Subsections (1) and (2) do not apply in respect of the installation of an update or upgrade to a computer program the installation or use of which was expressly consented to in accordance with subsections (1) and (2) if the person who gave the consent is entitled to receive the update or upgrade under the terms of the express consent and the update or upgrade is installed in accordance with those terms.

(a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;

(b) the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;

(c) the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person’s business, role, functions or duties in a business or official capacity; or

(d) the message is sent in the circumstances set out in the regulations.

(4) In subsection (3), “existing business relationship” means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately preceding the day on which the message was sent, by the person to whom the message is sent from any of those other persons;

(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;

(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;

(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or

(e) an inquiry or application, within the six-month period immediately preceding the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).

(5.1) If a person has an existing business relationship with another person in accordance with subsection (4), and the business is sold, the person who purchases the business is considered to have, in respect of that business, an existing business relationship with that other person.

(6) In subsection (3), “existing non-business relationship” means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

(a) a donation or gift made by the person to whom the message is sent to any of those other persons within the two-year period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;

(b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the two-year period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or

(c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately preceding the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.

(7) Where a period is specified in subsection (4) or (6) in relation to the purchase or lease of a product, goods, a service, land or an interest or right in land, or in relation to a donation, gift or membership,

(a) in the case of a purchase, lease, donation or gift, if it involves an ongoing use or ongoing purchase under a subscription, account, loan or similar relationship, the period is considered to commence on the day that the subscription, account, loan or other relationship terminates; and

(b) in the case of a membership, the period is considered to commence on the day that the membership terminates.

11. (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must

(a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using

(i) the same electronic means by which the message was sent, or

(ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and

(b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

(2) The person who sends the commercial electronic message and the person — if different — on whose behalf it is sent shall ensure that the electronic address or World Wide Web page referred to in paragraph (1)(b) is valid for a minimum of 60 days after the message has been sent.

(3) The person who sent the commercial electronic message and the person — if different — on whose behalf the message was sent shall ensure that effect is given to an indication sent in accordance with paragraph (1)(b) without delay, and in any event no later than 10 business days after the indication has been sent, without any further action being required on the part of the person who so indicated.

(5) A person who has the express consent of an owner or authorized user to do any act described in section 8 shall

(a) for a period of one year after any computer program that performs one or more of the functions described in subsection 10(2.2) but not referred to in subsection 10(2.3) is installed under the consent, ensure that the person who gave their consent is provided with an electronic address to which they may, if they believe that the function, purpose or impact of the computer program installed under the consent was not accurately described when consent was requested, send a request to remove or disable that computer program; and

(b) if the consent was based on an inaccurate description of the material elements of the function or functions described in subsection 10(2.2) of the computer program, on receipt within that one-year period of a request to remove or disable that computer program, without cost to the person who gave consent, assist that person in removing or disabling the computer program as soon as feasible.

14. For the purposes of any of sections 15 to 46, the Commission may designate persons or classes of persons appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act to exercise powers in relation to any matter referred to in the designation.

15. (1) A person who is designated for the purpose of this section may cause a demand to be served on a telecommunications service provider requiring it to preserve transmission data that is in, or comes into, its possession or control.

(2) Subject to subsection (5), the demand expires 21 days after the day on which it is served unless, before its expiry, a notice extending the demand for an additional period of 21 days is served on the telecommunications service provider. A demand may not be extended more than once and a notice revoking the demand may be served on the telecommunications service provider at any time.

(3) A person who is designated for the purpose of this section may make or extend a demand only for the purpose of

(a) verifying compliance with this Act;

(b) determining whether any of sections 6 to 9 has been contravened; or

(c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

(4) The designated person causing a demand to be served may impose conditions in the demand to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of

(a) an investigation under this Act; or

(b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

(5) A condition imposed to prevent disclosure expires six months after the day on which the demand is served on the telecommunications service provider unless, before its expiry, a notice extending the condition for an additional period of six months is served on the telecommunications service provider. A condition may not be extended more than once and a notice revoking the condition may be served on the telecommunications service provider at any time.

(6) A telecommunications service provider that is served with a demand shall

(a) subject to subsections 16(2) and (3), preserve the data until the demand expires or is revoked; and

(b) destroy the data that would not be retained in the normal course of business and any document that is prepared for the purpose of preserving data under this section as soon as the demand expires or is revoked, unless a notice requiring the production of a document based on that data has been served on it under section 17.

16. (1) Within five business days after the day on which a demand is served, a telecommunications service provider may apply in writing to the Commission either for a review of the demand on the grounds that preservation of some or all of the data would place an undue burden on it or for a review of the conditions imposed to prevent disclosure.

(2) After considering any representations made by the telecommunications service pro- vider and by the person designated for the purposes of section 15, the Commission may allow the application, deny the application or vary the demand, or any condition imposed in it, in any manner that the Commission considers reasonable in the circumstances.

(3) If a telecommunications service provider applies for review on the grounds that preservation of some or all of the data would place an undue burden on it and the Commission does not make a decision in respect of that matter within five business days after the day on which the application was made, the telecommunications service provider is not required to preserve any data to which the application relates that comes into the telecommunications service provider’s possession or control after the expiry of the five days.

17. (1) A person who is designated for the purpose of this section may cause a notice to be served on a person requiring them to produce a copy of a document that is in their possession or control, or to prepare a document based on data, information or documents that are in their possession or control and to produce that document.

(2) The designated person may issue the notice only for the purpose of

(a) verifying compliance with this Act;

(b) determining whether any of sections 6 to 9 has been contravened; or

(c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

(4) The designated person may impose conditions in the notice to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of

(a) an investigation under this Act; or

(b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

(5) A condition imposed to prevent disclosure expires six months after the day on which the notice is served on the person unless, before its expiry, a notice extending the condition for an additional period of six months is served on them. A condition may not be extended more than once and a notice revoking the condition may be served on the person at any time.

18. (1) At any time before they are required to produce a document, a person may apply in writing to the Commission either for a review of the notice on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances or that the production would disclose privileged information or for a review of the conditions imposed to prevent disclosure.

(4) If the Commission decides to confirm the requirement to produce a document, it shall specify in its decision that the document be produced to a person named in the decision within the time, at the place and in the form set out in the decision.

19. (1) On an ex parte application, a justice of the peace may issue a warrant authorizing a person who is designated for the purpose of this section and who is named in the warrant to enter a place if the justice is satisfied by information on oath that

(a) entry to the place is necessary to

(i) verify compliance with this Act,

(ii) determine whether any of sections 6 to 9 has been contravened, or

(iii) assist an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9; and

(b) if the place is a dwelling-house, entry has been refused or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

(4) The owner of the place, the person in charge of the place and every person found in the place shall give all assistance that is reasonably required to enable the designated person to execute the warrant and shall provide any documents, data and information — including information establishing their identity — that are reasonably required for that purpose.

(6) For the purpose of gaining entry to the place referred to in the warrant issued under subsection (1), the designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has the right to object to that use of the property and no warrant is required for entry onto the property, other than for entry to a dwelling-house.

(7) A person may, at the designated person’s request, accompany the designated person to assist the designated person to gain entry to the place referred to in the warrant and is not liable for doing so.

(3) The following factors must be taken into account when determining the amount of a penalty:

(a) the purpose of the penalty;

(b) the nature and scope of the violation;

(c) the person’s history with respect to any previous violation under this Act, any previous conduct that is reviewable under section 74.011 of the Competition Act and any previous contravention of section 5 of the Personal Information Protection and Elec- tronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act;

(d) the person’s history with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;

(e) any financial benefit that the person obtained from the commission of the violation;

(f) the person’s ability to pay the penalty;

(g) whether the person has voluntarily paid compensation to a person affected by the violation;

(4) If a person enters into an undertaking after a notice of violation is served on them, the proceeding commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.

22. (1) A person who is designated for the purpose of this section may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation.

(b) identify every act or omission for which the notice is served and every provision at issue;

(c) set out the administrative monetary penalty that the person is liable to pay and the time and manner of payment;

(d) inform the person that they may make representations to the Commission within 30 days after the day on which the notice is served or any longer period set out in the notice, and set out the manner for making the representations;

(e) inform the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and that the penalty set out in the notice will be imposed; and

(f) inform the person that if they are found or are deemed to have committed a violation they may be made the subject of an order requiring them to do what this Act requires them to do, or forbidding them to do what this Act prohibits them from doing, and that the order can be enforced as an order of a court of competent jurisdiction.

23. (1) No proceeding in respect of a violation may be commenced later than three years after the day on which the subject matter of the proceeding became known to a person designated under section 14.

(2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceeding became known to a person designated under section 14, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is proof of the matter asserted in it in the absence of evidence to the contrary.

24. (1) A person who is served with a notice of violation shall, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation.

(2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty and do not make representations, in accordance with the notice of violation.

25. (1) If a person makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may impose the penalty set out in the notice of violation, may reduce or waive the penalty, or may suspend payment of the penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.

26. (1) If a person is deemed under subsection 24(2) to have committed a violation or has been found under subsection 25(1) to have committed a violation, the Commission may make an order directing the person to cease contravening the provision to which the violation relates.

27. (1) Subject to subsection (2), an appeal may be brought in the Federal Court of Appeal from a decision made under section 16, 18 or 25 or an order made under section 26 within 30 days after the day on which the decision or order, as the case may be, is made.

(2) An appeal on a question of fact from a decision made under section 16, 18 or 25 or an order made under section 26 may be brought only with the leave of the Federal Court of Appeal, an application for which must be made within 30 days after the day on which the decision or order, as the case may be, is made. The appeal may not be brought later than 30 days after the day on which leave to appeal is granted.

28. (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

(a) the amount payable under an undertaking entered into under subsection 21(1) beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;

(b) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;

(c) if representations are made, either the amount of the penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and

(d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).

31. An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.

32. A person is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.

(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.

35. In a proceeding under this Act, the Commission has the powers of a superior court with respect to the attendance and examination of witnesses and the production and examination of documents or things.

38. A demand under section 15, a notice to prepare or produce documents under section 17, a notice of violation under section 22, a copy of a decision under section 16, 18 or 25 or an order of the Commission under section 26, that appears to have been served is admissible in evidence in a proceeding without proof of the signature or official character of the person who appears to have signed it.

(a) the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions and provisions at issue, the conditions included in the undertaking and the amount payable under it, if any; or

(b) the name of a person who is deemed, or is found by the Commission or on appeal, to have committed a violation, the acts or omissions and provisions at issue and the amount payable as a result, if any.

40. (1) A demand served under section 15, a notice served under section 17, an undertaking entered into under section 21 and an order of the Commission made under section 26 may be made an order of a court of competent jurisdiction and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date it was served, in the case of a demand, notice or order, or entered into, in the case of an undertaking.

(3) On application by a person designated for the purpose of section 21 and a person who has entered into an undertaking that has been filed in a court of competent jurisdiction, that court shall rescind or vary the undertaking if it finds that another undertaking in relation to the same acts or omissions has been entered into by the person.

41. (1) If, on the application of a person designated for the purpose of this section, a court of competent jurisdiction is satisfied that a person is about to do or is likely to do anything that constitutes or is directed toward the contravention of any of sections 6 to 9, the court may issue an injunction ordering any person named in the application

(a) to refrain from doing anything that, in the opinion of the court, constitutes or is directed toward the contravention of that section; or

(b) to do anything that, in the opinion of the court, may prevent the contravention of that section.

(2) No injunction may be issued unless 48 hours’ notice is given to every person named in the application or the urgency of the situation is such that service of the notice would not be in the public interest.

43. Every person who obstructs or hinders, or knowingly makes a false or misleading statement or provides false or misleading information to, a designated person who is carrying out their duties and functions under this Act commits an offence.

44. An officer, director, agent or mandatary of a corporation that commits an offence is a party to and liable for the offence if they directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation is proceeded against.

45. A person is liable for an offence that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.

47. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 6 to 9 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 51 against one or more persons who they allege have committed the act or omission, who they allege are liable for the contravention by reason of section 52 or 53 or who they allege have engaged in the reviewable conduct.

(3) The application must be accompanied by an affidavit that identifies the alleged contravention or reviewable conduct, sets out every provision, act or omission at issue and any other facts in support of the application and, if the applicant claims that they have suffered an actual loss or damage, or have incurred expenses, as a result of the alleged contravention or reviewable conduct, states the nature and amount of the loss, damage or expenses.

(4) The applicant shall, without delay, serve a copy of the application on every person against whom an order is sought, on the Commission if the application identifies a contravention of this Act, on the Commissioner of Competition if the application identifies conduct that is reviewable under section 74.011 of the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.

48. (1) The court may not consider an application for an order against a person under paragraph 51(1)(b) that alleges a contravention of any of sections 6 to 9

(a) if the person has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application; or

(b) if the person is liable for the contravention by virtue of section 52 or 53 and the corporation, employee, agent or mandatary, as the case may be, who committed the contravention has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application.

(2) At the written request of a person against whom an order under paragraph 51(1)(b) is sought, the Commission shall, within 10 business days after the day on which the request is made, if it is so satisfied, certify in writing to the court that the person is a person referred to in paragraph (1)(b) and that an undertaking has been entered into, or a notice of violation has been served, in connection with the act or omission referred to in the application for the order. If such a certification is given, the court may not consider the application.

(3) If the court determines that it may consider an application for an order against a person under paragraph 51(1)(b), then, unless the application is discontinued in respect of that person,

(a) no undertaking by the person may be entered into under subsection 21(1), and no notice of violation may be issued to them under subsection 22(1), in connection with an act or omission referred to in an application; and

(b) no undertaking by the corporation, employee, agent or mandatary who committed the contravention may be entered into under subsection 21(1), and no notice of violation may be issued to that corporation, employee, agent or mandatary under subsection 22(1), in connection with an act or omission referred to in an application.

49. If an application for an order under paragraph 51(1)(b) is discontinued in respect of a person, the applicant shall, without delay, notify everyone who was served with a copy of the application under subsection 47(4) of the discontinuance.

51. (1) If, after hearing the application, the court is satisfied that one or more persons have contravened any of the provisions referred to in the application or engaged in conduct that is reviewable under section 74.011 of the Competition Act, the court may order the person or persons, as the case may be, to pay the applicant

(a) compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant; and

(b) a maximum of

(i) in the case of a contravention of section 6, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred,

(ii) in the case of a contravention of section 7 or 8, $1,000,000 for each day on which a contravention occurred,

(iii) subject to subparagraphs (iv) and (v), in the case of a contravention of section 9, $1,000,000 for each contravention of that provision,

(iv) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 6, and if a contravention of section 6 has resulted, $200 for each such contravention of section 6, not exceeding $1,000,000 for each day on which a contravention of section 6 occurred,

(v) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 7 or 8, and if a contravention of either of those sections has resulted, $1,000,000 for each day on which a contravention of section 7 or 8, as the case may be, occurred,

(vi) in the case of a contravention of section 5 of the Personal Information Protection and Electronic Documents Act, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred, and

(vii) in the case of conduct that is reviewable under section 74.011 of the Competition Act, $200 for each occurrence of the conduct, not exceeding $1,000,000 for each day on which the conduct occurred.

(2) The court shall consider the following factors when it determines the amount payable under paragraph (1)(b) for each contravention or each occurrence of the reviewable conduct:

(a) the purpose of the order;

(a.1) the nature and scope of the contravention;

(b) the person’s history, or each person’s history, as the case may be, with respect to any previous contravention of this Act and of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act and of conduct that is reviewable under section 74.011 of the Competition Act;

(c) the person’s history, or each person’s history, as the case may be, with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;

(d) any financial benefit that the person or persons obtained from the commission of the contravention or from engaging in the reviewable conduct;

(e) the person’s or persons’ ability to pay the total amount payable;

(f) whether the applicant has received compensation in connection with the contravention or the reviewable conduct;

52. An officer, director, agent or mandatary of a corporation that commits a contravention of any of sections 6 to 9 is a party to and liable for the contravention if they directed, authorized, assented to, acquiesced in or participated in the commission of the contravention, whether or not the corporation is proceeded against.

53. A person is liable for a contravention of any of sections 6 to 9 that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.

(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a contravention of any of sections 6 to 9 to the extent that it is not inconsistent with this Act.

55. If more than one person is determined by the court under subsection 51(1) to have contravened any of the provisions referred to in an application under subsection 47(1) or to have engaged in conduct that is reviewable under section 74.011 of the Competition Act, those persons are jointly and severally, or solidarily, liable for the payment of the amounts ordered to be paid under subsection 51(1) in respect of the contravention or the reviewable conduct.

56. Despite subsection 7(3) of the Personal Information Protection and Electronic Documents Act, any organization to which Part 1 of that Act applies may on its own initiative disclose to the Commission, the Commissioner of Competition or the Privacy Commissioner any information in its possession that it believes relates to

(a) a contravention of

(i) any of sections 6 to 9,

(ii) section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, section 52, 52.1, 53, 55 or 55.1 of that Act,

(iii) section 5 of the Personal Information Protection and Electronic Documents Act, which contravention relates to a collection or use described in subsection 7.1(2) or (3) of that Act, or

(iv) any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or

(b) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.

57. The Commission, the Commissioner of Competition and the Privacy Commissioner shall consult with each other to the extent that they consider appropriate to ensure the effective regulation, under this Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, of commercial conduct that discourages the use of electronic means to carry out commercial activities, and to coordinate their activities under those Acts as they relate to the regulation of that type of conduct.

58. (1) The Commission may disclose information obtained by it in the performance or exercise of its duties or powers related to any of sections 6 to 9 of this Act and, in respect of conduct carried out by electronic means, to section 41 of the Telecommunications Act,

(a) to the Privacy Commissioner, if the Commission believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and

(b) to the Commissioner of Competition, if the Commission believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.

(2) Despite section 29 of the Competition Act, the Commissioner of Competition may disclose information obtained by him or her in the performance or exercise of his or her duties or powers related to section 52.01 or 74.011 of that Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,

(a) to the Privacy Commissioner, if the Commissioner of Competition believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and

(b) to the Commission, if the Commissioner of Competition believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.

(3) The Privacy Commissioner may disclose information obtained by him or her in the performance or exercise of his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act if the information relates to a collection or use described in subsection 7.1(2) or (3) of that Act or to an act alleged in a complaint in respect of which the Privacy Commissioner decides, under subsection 12(2) or 12.2(2) of that Act, to not conduct an investigation or to discontinue an investigation,

(a) to the Commissioner of Competition, if the Privacy Commissioner believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act; and

(b) to the Commission, if the Privacy Commissioner believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.

59. (1) The Commission may use the information that is disclosed to it under paragraph 58(2)(b) or (3)(b) only for the purpose of the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.

(2) The Commissioner of Competition may use the information that is disclosed to him or her under paragraph 58(1)(b) or (3)(a) only for the purpose of the performance or exercise of the Commissioner’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.

(3) The Privacy Commissioner may use the information that is disclosed to him or her under paragraph 58(1)(a) or (2)(a) only for the purpose of performing or exercising his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act.

60. (1) Information may be disclosed under an agreement or arrangement in writing between the Government of Canada, the Commission, the Commissioner of Competition or the Privacy Commissioner and the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if the person responsible for disclosing the information believes that

(a) the information may be relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to

(i) conduct prohibited

(A) under any of sections 6 to 9, or

(B) under section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, under section 52, 52.1, 53, 55 or 55.1 of that Act,

(ii) conduct that contravenes section 5 of the Personal Information Protection and Electronic Documents Act and that relates to a collection or use described in subsection 7.1(2) or (3) of that Act,

(iii) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act, or

(iv) conduct that contravenes any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or

(b) the disclosure is necessary in order to obtain from that foreign state, organization or institution information that may be relevant for any of the following purposes and no more information will be disclosed than is required for that purpose:

(i) the administration of any of sections 6 to 9,

(ii) the performance or exercise by the Commissioner of Competition of his or her duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,

(iii) the performance or exercise by the Privacy Commissioner of his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act, or

(iv) the administration, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.

(a) restrict the use of the information to purposes relevant to an investigation or proceeding in respect of a contravention of the laws of the foreign state that address conduct referred to in any of subparagraphs (1)(a)(i) to (iv); and

(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the person responsible for disclosing the information.

(2.1) An arrangement referred to in subsection (1) entered into by the Commission or the Privacy Commissioner may be in respect only of contraventions of the laws of a foreign state that have consequences that would not be considered penal under Canadian law.

(3) The only information that may be disclosed under subsection (1) is information

(a) obtained in the course of assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct referred to in any of subparagraphs (1)(a)(i) to (iv); or

(b) obtained in the course of the activities described in any of subparagraphs (1)(b)(i) to (iv).

(4) For the purposes of this section, an arrangement may be created by the acceptance, by the Government of Canada, the Commission, the Commissioner of Competition or the Privacy Commissioner, of a written request for assistance from the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if the request is accompanied by a declaration that the party making the request will provide assistance to the party to whom the request is made on a reciprocal basis.

60.1 The Commission, the Commissioner of Competition and the Privacy Commissioner shall provide the Minister of Industry with any reports that he or she requests for the purpose of coordinating the implementation of sections 6 to 9 of this Act, sections 52.01 and 74.011 of the Competition Act and section 7.1 of the Personal Information Protection and Electronic Documents Act.

(2) The experts and other persons engaged by the Commission shall be paid the remuneration, and are entitled to be paid the travel and living expenses incurred in providing assistance to the Commission, as may be fixed by the Governor in Council.

(a) respecting the form of a request for consent for the purposes of subsections 10(1) and (2);

(b) respecting undertakings under subsection 21(1);

(c) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and

63.1 Three years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.

63.2 A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(4) or (6), respectively, without regard to the period mentioned in that subsection; and

(b) the relationship includes the communication between them of commercial electronic messages.

63.3 If a computer program was installed on a person’s computer before section 8 comes into force, the person’s consent to the installation of an update or upgrade to the program is implied until the person gives notification that they no longer consent to receiving such an installation or until three years after the day on which section 8 comes into force, whichever is earlier.

(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or any special Act, as defined in subsection 2(1) of that Act, or by the Electronic Commerce Protection Act.

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;

“data”« données »

“data”, other than in Part III, means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system;

“electronic message”« message électronique »

“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;

“information”« renseignement »

“information” includes data;

“locator”« localisateur »

“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;

“sender information”« renseignements sur l’expéditeur »

“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;

“subject matter information”« objet »

“subject matter information” means the part of an electronic message that purports to summarize the contents of the message or to give an indication of them;

(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.

33. (1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under Part VI — other than an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53 — or under section 66, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, if it appears to the court that

(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence; and

(b) if the offence is committed or continued,

(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or

(ii) serious harm is likely to ensue unless the injunction is issued and the balance of convenience favours issuing the injunction.

(1.1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, if it appears to the court that

(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;

(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and

(1.2) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction ordering any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to commit or continue an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, or to do any act or thing that it appears to the court could prevent the commission or continuation of such an offence, if it appears to the court that

(a) a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;

(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and

(2) Subject to subsection (3), at least 48 hours’ notice of an application for an injunction under subsection (1), (1.1) or (1.2) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.

(3) If a court to which an application is made under subsection (1), (1.1) or (1.2) is satisfied that subsection (2) cannot reasonably be complied with, or that the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest, it may proceed with the application ex parte but any injunction issued under subsection (1), (1.1) or (1.2) by the court on ex parte application has effect only for the period, not exceeding 10 days, that is specified in the order.

(5) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, on at least 48 hours’ notice of the application to all other parties to the injunction, a court that issues an injunction under subsection (1), (1.1) or (1.2) may, by order,

(a) despite subsections (3) and (4), continue the injunction, with or without modification, for any definite period that is specified in the order; or

(6) If an injunction is issued under subsection (1), (1.1) or (1.2), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the acts or things on the basis of which the injunction was issued.

(7) A court may punish any person who contravenes an injunction issued by it under subsection (1), (1.1) or (1.2) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.

52.01 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.

(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.

(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.

(8) No proceedings may be commenced under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought under Part VII.1.

52.02 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct prohibited under section 52, 52.01, 52.1, 53, 55 or 55.1,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act or the Criminal Code to investigate an offence under any of those sections; and

(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

(2) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).

52.1 (1) In this section, “telemarketing” means the practice of communicating orally by any means of telecommunication for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product.

(a) disclosure is made, in a fair and reasonable manner at the beginning of each communication, of the identity of the person on behalf of whom the communication is made, the nature of the business interest or product being promoted and the purposes of the communication;

(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the communication.

74.011 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.

(2) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent in an electronic message a representation that is false or misleading in a material respect.

(3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, makes or causes to be made a false or misleading representation in a locator.

(4) In proceedings under this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.

74.012 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct that is reviewable under section 74.01, 74.011, 74.02, 74.04, 74.05 or 74.06,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act to investigate conduct that is reviewable under any of those sections; and

(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

(3) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).

74.101 (1) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under section 74.011 and orders the person to pay an administrative monetary penalty under paragraph 74.1(1)(c), then the court shall deduct from the amount of the penalty that it determines any amount that the person

(a) has been ordered to pay under paragraph 51(1)(b) of the Electronic Commerce Protection Act in respect of the same conduct; or

(b) has agreed in a settlement agreement to pay on account of amounts referred to in paragraph 51(1)(b) of that Act in respect of the same conduct.

(2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).

74.11 (1) On application by the Commissioner, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that

(1.1) On application by the Commissioner, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that

(2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.

(3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.

(4) The court may proceed ex parte with an application made under subsection (1) or (1.1) if it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.

74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.

“access” means to program, to execute programs on, to communicate with, to store data in, to retrieve data from, or to otherwise make use of any resources, including data or programs on a computer system or a computer network.

“computer program”« programme d’ordinateur »

“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“computer system”« ordinateur »

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

(2) Paragraphs 7(1)(a), (c) and (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of an individual’s electron- ic address, if the address is collected by the use of a computer program that is designed or marketed primarily for use in generating or searching for, and collecting, electronic addresses; or

(b) the use of an individual’s electronic address, if the address is collected by the use of a computer program described in paragraph (a).

(3) Paragraphs 7(1)(a) to (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization; or

(b) the use of personal information that is collected in a manner described in paragraph (a).

(2) Despite subsection (1), the Commissioner is not required to conduct an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

(4) The Commissioner may reconsider a decision not to investigate under subsection (1), if the Commissioner is satisfied that the complainant has established that there are compelling reasons to investigate.

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

(b) administer oaths;

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

(d) at any reasonable time, enter any prem- ises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within 10 days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

(5) Any person to whom powers set out in subsection (1) are delegated shall be given a certificate of the delegation and the delegate shall produce the certificate, on request, to the person in charge of any premises to be entered under paragraph (1)(d).

(2) The Commissioner may discontinue an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

14. (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

(2) A complainant must make an application within 45 days after the report or notification is sent or within any further time that the Court may, either before or after the expiry of those 45 days, allow.

20. (1) Subject to subsections (2) to (6), 12(3), 12.2(3), 13(3), 19(1), 23(3) and 23.1(1) and section 25, the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.

(6) The Commissioner may disclose information, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information, in the course of proceedings in which the Commissioner has intervened under paragraph 50(c) of the Electronic Commerce Protection Act or in accord- ance with subsection 58(3) or 60(1) of that Act.

23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation, has functions and duties similar to those of the Commissioner with respect to the protection of such information.

23.1 (1) Subject to subsection (3), the Commissioner may, in accordance with any procedure established under paragraph (4)(b), disclose information referred to in subsection (2) that has come to the Commissioner’s knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part to any person or body who, under the legislation of a foreign state, has

(a) functions and duties similar to those of the Commissioner with respect to the protection of personal information; or

(b) responsibilities that relate to conduct that is substantially similar to conduct that would be in contravention of this Part.

(2) The information that the Commissioner is authorized to disclose under subsection (1) is information that the Commissioner believes

(a) would be relevant to an ongoing or potential investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct that would be in contravention of this Part; or

(b) is necessary to disclose in order to obtain from the person or body information that may be useful to an ongoing or potential investigation or audit under this Part.

(4) The Commissioner may enter into arrangements with one or more persons or bodies referred to in subsection (1) in order to

(a) provide for cooperation with respect to the enforcement of laws protecting personal information, including the sharing of information referred to in subsection (2) and the provision of mechanisms for the handling of any complaint in which they are mutually interested;

(5.1) The Commission may disclose designated information obtained by it in the perform- ance or exercise of its duties or powers related to any of sections 6 to 9 of the Electronic Commerce Protection Act in accordance with subsection 58(1) or 60(1) of that Act.

(2) Despite subsection (1), the Commission may not prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is

(a) a commercial electronic message to which section 6 of the Electronic Commerce Protection Act applies; or

(b) a commercial electronic message referred to in subsection 6(5) of that Act, except to the extent that it is one referred to in subsection 6(7) of that Act.

(2) Despite subsection (1), the Commission may not prohibit — or, except to the extent provided by subsection (3), regulate — the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is a commercial electronic message to which the Electronic Commerce Protection Act applies or a commercial electron- ic message referred to in subsection 6(5) of that Act.